Judge Maurice A. Leiter, Case Number: 23STCP04569, Date: 2024-09-18 Tentative Ruling

Responding Parties: Respondent, City of Los Angeles; Real Party in Interest, Hi Point M, LLC

T/R: HI POINT’S SUPPLEMENTAL PETITION AND GRANO’S PETITION FOR WRIT OF MANDATE ARE GRANTED.

A. Measure JJJ, Transit Oriented Communities Affordable Housing Incentive Program

On November 8, 2016, Los Angeles County voters adopted Measure JJJ. Measure JJJ sought to address the acute shortage of affordable housing for unhoused and low-income persons, following the dissolution of the Community Redevelopment Agency (which had provided funding for low- and moderate-income housing), and considering the County’s outdated General Plan and zoning designations, which failed to address affordable housing challenges.

Measure JJJ contained an incentive program to encourage the development of affordable housing. It sought to spur development of affordable housing in strategic locations, such as near major transit stops, where residents are susceptible to displacement as property values and rents rise. And it created the Transit Oriented Communities (“TOC”) Affordable Housing Incentive Program to provide developers with incentives to develop affordable housing in transit-oriented neighborhoods.

On December 13, 2016, the Los Angeles Municipal Code was amended to codify Measure JJJ and the TOC Affordable Housing Incentive Program, in Municipal Code section 12.22 A.31. This Code section provides incentives to housing developments “located within a one-half mile radius [2,640 feet] of a Major Transit Stop,” defined by Public Resources Code § 21064.3 as “[t]he intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute hours.” (Pub. Resources Code, § 21064.3, subd. (c).) The incentives include residential density increases and parking reductions. It directs, “[w]ithin 90 days of enactment of this Ordinance, the Director of Planning [to] prepare TOC Affordable Housing Incentive Program Guidelines (“TOC Guidelines”) that provide the eligibility standards, incentives, and other necessary components of this TOC Incentive Program described herein.” (Ibid.)

On May 25, 2017, the Los Angeles City Planning Commission (“CPC”) adopted TOC Guidelines. The TOC Guidelines specify that only affordable housing developments located within a one-half mile radius of a “major transit stop” qualify for the incentives. They establish a “Tier” system, which provides a ranking (Tier 1-4) to each eligible affordable housing based on its proximity to a “major transit stop.” Pertinent to the matter before the Court, the TOC Guidelines provide that affordable housing developments will be ranked as “Tier 3” where (a) the development is located within 750 feet of an intersection of a Regular Bus and Rapid Bus Line; or (b) the development is located within 1,500 feet of an intersection of two Rapid Bus lines. The TOC Guidelines define a “Rapid Bus” as “a higher-quality bus service that may include dedicated bus lanes, branded vehicles and stations, high frequency, limited stops at major intersections, intelligent transportation systems, and possible off-board fare collection and/or all door boarding. It includes Metro Bus Rapid Transit line, Metro Rapid 700 lines, Metro Orange and Silver Lines, Big Blue Rapid lines, and the Rapid 6 Culver City.

The TOC Guidelines state that all eligible affordable housing developments will receive “Base Incentives,” which are residential density increases (an increase in the number of dwelling units permitted under the applicable zoning ordinance, and an increase in the floor area ratio permitted under the applicable zoning ordinance), and parking reductions (a decrease in the number of parking spaces required under the applicable zoning ordinance). The degree of the reduction and/or increase permitted is determined by Tier ranking. And the TOC Guidelines provide that eligible affordable housing developments may be granted “[u]p to three Additional Incentives,” including reductions in yards/setbacks, decreases in open space, increases in maximum lot coverage, decreases in lot width, and increases in development height.

The proposed project at issue here concerns a rectangular-shaped lot at 1447 South Hi Point Street in Los Angeles (“Project Site”), near the intersection of Pico Boulevard and Fairfax Avenue. The Project Site is approximately 8,839 square feet and currently has a single-family residence. The Project Site is in the Wilshire Community Plan Area and is zoned [Q]R3-1-O, with a land use designation of “Medium Residential.” Under its current zoning, building height is limited to 35 feet, articulation is required every 30 feet for building facades exceeding 40 feet, and balconies above the first floor which have a line of sight to adjacent homes are prohibited.

The proposed Project would demolish the single-family home and construct a five-story, 57-foot-high multi-family residential development above one level of subterranean parking. It will contain 20 multi-family dwelling units: two one-bedroom units, ten two-bedroom units, and eight three-bedroom units. It would provide 24 parking spaces, 20 long-term bicycle parking spaces, and two short-term bicycle parking spaces. The building will encompass approximately 20,093 square feet in total building area, with a floor area ratio of approximately 3.78:1.

The properties surrounding the Project Site generally are commercial, single-family residences, and multi-family residential uses. Properties abutting the Project Site to the west are zoned [Q]R3-1-O and contain three- and four-story apartment buildings. Properties to the east of the Project Site, across Hi Point Street, are also zoned [Q]R3-1-O and are developed with one- to four- story single-family homes, condominiums, and small lot buildings. Properties to the north of the Project Site are zoned [Q]R3-1-O and C4-1-O and include both single-family and multi-family residential structures, as well as a McDonald’s Drive-Thru restaurant and a commercial strip mall. Properties to the south of the Project Site, across Saturn Street, are zoned [Q]R3-1-O and R1R3-RG-O and include a mix of single-family residences and multi-story apartment buildings.

On February 27, 2020, Hi Point M, LLC (“Real Party”) submitted a “Transit-Oriented Communities Referral Form” to the Department of City Planning, which asked the Department to determine whether the Project qualified for incentives under the TOC Affordable Housing Incentive Program and, if so, under which “Tier” the Project may be categorized. On the same day, the Department concluded that the Project qualified for incentives because the Project was within a half-mile radius of a “Major Transit Stop.” The Department noted, “Santa Monica [Big Blue Bus] 7” and “[Rapid] 7” travel through the intersection [at Pico and Fairfax] and have service intervals of less than 15 minutes. The Department also noted that “Local Line 217” and “Rapid 780” travel through the intersection and have service intervals of 14.4 minutes and 12.7 minutes, respectively. The Department concluded the Project qualified for “Tier 3” categorization because it was (a) within 750 feet of an intersection of a Regular Bus and Rapid Bus Line, or (b) within 1,500 feet of an intersection of two Rapid Bus lines.

On May 24, 2020, Real Party submitted a “Department of City Planning Application” requesting approval of the Project and the issuance of incentives under the TOC Affordable Housing Incentive Program. Real Party sought: (a) 70% Density Bonus; (b) 50% Floor Area Ratio increase, (c) Parking reduction to .5 spots per unit; (d) 22 feet height increase; (e) 25% open space reduction; and (f) 30% side yard setback reduction.

On December 30, 2020, the Director of the Department of City Planning approved the application. The Director determined the Project is in a “Tier 3” Incentive Area and approved these “Base Incentives:” (a) a density increase of 70 percent, which equates to a maximum density of 21 residential dwelling units; (b) a maximum floor area ratio of 4.5 to 1, representing a 50 percent increase in the floor area ratio of the underlying residential zone; and (c) .5 automobile parking spaces per unit. The Director also approved these “Additional Incentives:” (a) a 30 percent reduction in the required width of two side yards to provide a minimum setback of five feet eight inches in lieu of the minimum eight feet; (b) an increase of 22 feet in building height, equal to a maximum building height of 57 feet, with limited additional height permitted for roof structures, stairwells, elevator shafts, etc. as permitted by the Los Aneles Municipal Code; and (c) a maximum reduction of 25 percent in the required amount of open space. And the Director concluded that the Project was exempt from CEQA pursuant to the “Class 32” Categorical Exemption.

On January 13, 2021, nearby residents filed a total of five appeals from the Director’s approval of the Project. The residents’ appeals challenged: (a) The Director’s conclusion the Project is located in a “Tier 3” TOC Affordable Housing Incentive Area; (b) The Director’s conclusion the Project is exempt from CEQA pursuant to the “Class 32” Categorical Exemption, because the Project will have significant impacts on noise and traffic conditions; (c) whether the Project complies with the Qualified “Q” Conditions of the Project Site’s [Q]R3-1-O zoning; and (d) whether the height of the Project is incompatible with the surrounding neighborhood and will result in loss of sunlight, properly values, and community character.

In response to these appeals the Department of City Planning drafted an “Appeals Recommendation Report”, which recommended that the appeals be denied. The Report concluded that: (a) While the Project Site may not be located within 750 feet from a Major Transit Stop, “the project [remains] qualified for Tier 3 TOC status by proximity to a Major Transit Stop involving the intersection of two or more rapid bus routes located within 1,500 feet of the subject property” (rapid bus routes, Santa Monica Big Blue Bus Rapid 7 Line and Metro Rapid Line 780); (b) The Project is exempt from CEQA as it satisfied the five requirements applicable to the “Class 32” Categorical Exemption; (c) the Project is in compliance with the Qualified “Q” Condition; and (d) the Project’s height is not incompatible with the surrounding neighborhood.

On April 8, 2021, the CPC adopted the Department of City Planning’s recommendation and denied the appeals.

On April 13, 2021, two residents filed a CEQA appeal of the “Class 32” Categorical Exemption finding. On August 31, 2021, the Planning and Land Use Management (“PLUM”) Committee, following a hearing, recommended the City Council deny the residents’ appeal. On September 15, 2021, the City Council adopted the PLUM Committee’s recommendation and denied the CEQA appeal.

On July 12, 2021, Hi Point Neighbors’ Association (“Hi Point”) filed a Verified Petition for Writ of Mandate against City of Los Angeles. On March 9, 2023, the Court granted the petition in part and denied it in part. The Court denied the petition with respect to the First and Third Causes of Action and granted with respect to the Second Cause of Action. On May 25, 2023, the Court issued a Writ ordering Respondent to set aside its Tier 3 TOC approval.

On August 24, 2023, the CPC held a hearing on the action to set aside the approval, during which Real Party requested a continuation to consider additional evidence for Tier 3 incentives. The CPC granted the request and allowed for rehearing and reconsideration. On September 28, 2023, the CPC reheard and redecided the Appeals, ultimately setting aside the approval of the Planning Case and reapproving it, while also denying the Appeals and determining the Project was exempt from CEQA.

Notice of these hearings was sent to the original appellants, the applicant, and their representatives, excluding adjacent property owners and Petitioner Grano, who lived near the Project site. On October 17, 2023, the CPC issued a letter of determination, and on November 1, 2023, Petitioner Grano filed a CEQA Appeal, which was later rejected by the City. Petitioner Grano objected to the City’s refusal to accept her appeal in a letter dated November 21, 2023.

On October 25, 2023, Hi Point filed a Supplemental Petition for Writ of Mandate. Petitioner Andrea Grano filed a Petition for Writ of Mandate on December 20, 2023. These cases were related, and the parties agreed to combined briefing and trial. Hi Point’s Verified Supplemental Petition for Writ of Mandate alleges: (1) Action Without or in Excess of Authority; and (2) Violation of Local Zoning. Grano’s Petition alleges (1) violation of CEQA for failure to allow appeal to elected administrative body and improper approval of Class 32 Categorical Exemption, and (2) Violation of Local Zoning. The Court addresses both petitions in this ruling.

Petitioners’ Request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452, subdivisions (a), (b), (c) and (h).

Respondent’s Request for Judicial Notice is GRANTED, pursuant to Evidence Code § 452, subdivisions (a) and (b).

Petitioners’ Supplemental Request for Judicial Notice is additionally GRANTED, pursuant to Evidence Code § 452, subdivisions (c).

Petitioners seek to vacate and void the CPC’s re-hearing and re-approval of the Project on the grounds that it acted beyond its jurisdiction and violated local zoning provisions.

Where a party alleges that the Commission has acted beyond its statutory jurisdiction, it may challenge the agency’s order or decision in an action for administrative mandamus under Code of Civil Procedure § 1094.5. Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 414.) “The standard of review in administrative mandate proceedings is well-settled: whether the agency acted without or in excess of jurisdiction, whether there was a fair hearing, and whether there was a prejudicial abuse of discretion. An abuse of discretion occurs when the agency did not proceed in the manner required by law, its order or decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)” (Hubbard v. California Coastal Com. (2019) 38 Cal.App.5th 119, 135.) The court reviews “the administrative record to determine whether the Agency’s findings are supported by substantial evidence. (Id.)

“When the determination of an administrative agency’s jurisdiction involves a question of statutory interpretation, ‘the issue of whether the agency proceeded in excess of its jurisdiction is a question of law.’ … ‘[A] court does not ... defer to an agency’s view when deciding whether a regulation lies within the scope of the authority delegated by the Legislature.’” (Security National Guaranty, Inc., supra, 159 Cal.App.4th at 414.) “The rules of statutory construction, which are equally applicable to administrative regulations, are also well-settled. The fundamental rule is to ascertain the Legislature’s intent in order to give effect to the purpose of the law.” (Hubbard v. California Coastal Com. (2019) 38 Cal.App.5th 119, 135.) When interpreting a statute, the words should be given their ordinary meaning without rendering any part of the language unnecessary. (Id.) The interpretation must consider the context, purpose, and intent of the legislature and aim for a practical, common-sense understanding that avoids absurd outcomes. (Id.) The “interpretation should be practical, not technical, and should also result in wise policy, not mischief or absurdity.” (Id.) Statutes should be interpreted within the broader legal framework to maintain harmony. (Id.) If the statutory language is clear, it should not be altered. (Id. at 136.) “If, however, there is more than one reasonable interpretation of a statute, then it is ambiguous.” (Id.) In such a case, the court may consider secondary factors like legislative history, public policy, and the broader circumstances surrounding the statute’s enactment to determine its meaning. (Id.)

Petitioners argue that the CPC exceeded its jurisdiction by rehearing and reapproving the Planning Case after it had denied the appeals in 2021. According to Petitioners, once the CPC has exercised its authority on an appeal, it cannot rehear the same matter without explicit authorization from the charter or ordinance. Charter Section 245, City Council Veto of Board Actions states that actions taken by boards of commissioners become final if the City Council does not act within five meeting days after the board’s action, unless the Council votes by a two-thirds majority to review or waive review of the action. If the Council decides to review the action, it can veto the board’s decision within 21 calendar days by a two-thirds vote; otherwise, the board's action becomes final.

The CPC, as a body of special and limited jurisdiction, possesses only the authority explicitly granted by the City Charter or municipal ordinances. (Heap v. City of Los Angeles (1936) 6 Cal.2d 405, 407.) Petitioners rely on Heap to argue that an administrative body like the CPC cannot reconsider a decision once it has been finalized unless there is explicit statutory or charter authority to do so. (Heap, supra, 6 Cal.2d at 407.) There, the court ruled that the Civil Service Commission could not rehear a case after making a final decision because the relevant statute described the decision as “final and conclusive.” (Id.) Based on Charter Section 245, it appears that the April 13, 2021 determination denying Petitioners’ appeals was final. The CPC did not vote to reconsider the item at the same or the next meeting according to its Rules and Operating Procedures. Respondents do not dispute this. The Court finds that the April 13, 2021 action was a final determination.

The Writ issued in this case required the City to set aside the prior approval of the TOC Entitlement. Petitioners argue that the Writ did not direct the CPC to reconsider the matter or authorize it to reopen and rehear the appeal. Petitioners point out that the Writ instructed the City to “set aside” the approval of the TOC Entitlement and did not include any directive to remand the case for reconsideration. Code of Civil Procedure § 1094.5 subdivision (e)-(f) allows the court to remand a case for reconsideration if it finds that relevant evidence, which could not have been produced earlier despite reasonable diligence or was improperly excluded, should be considered. If the court orders that a decision be set aside, it also may direct that the case be reconsidered in light of the court's opinion and judgment. However, the court’s judgment cannot limit or control the discretion legally vested in the respondent agency. (Code Civ. Proc., 1094.5 subd. (e)-(f).)

Respondents and Real Party argue the CPC has inherent authority over TOC appeals, provided by LAMC §12.22.A.25(g)(2), which allows the CPC to rehear and reconsider a matter without requiring a new application. They contend that the Writ issued by the Court did not limit the CPC’s discretion or jurisdiction. In support of this argument Real Party relies on Save Oxnard Shores v. California Coastal Com. (1986) 179 Cal.App.3d 140, 150; National Auto. & Cas. Ins. Co. v. Downey (1950) 98 Cal.App.2d 586, 594; and Fascination, Inc. v. Hoover (1952) 39 Cal.2d 260, 268.

These cases are distinguishable. In Save Oxnard Shores, the Court of Appeal held that the Coastal Commission’s decision to set aside its original approval pursuant to the court’s alternative writ was valid. (Save Oxnard Shores, supra, 179 Cal.App.3d at 150.) There, the petitioners filed a petition for writ of administrative mandamus, asking the court to set aside and vacate the Commission’s certification of the City of Oxnard’s Land Use Plan to allow residential construction in a coastal area vulnerable to flooding and erosion. (Id. at 145-146.) The trial court issued an alternative writ of mandamus, giving the Commission a choice: set aside its decision or appear in court to justify why it should not have to. (Id. at 146.) In response, the Commission chose to set aside its decision that conditionally certified the LUP for Oxnard Shores. (Id. at 147.) An association representing property owners intervened, arguing that setting aside the Commission’s decision would deprive them of their property rights and constitute a “taking” without just compensation. (Id. at 146-147.) The Court of Appeal held that the Commission was within its rights to comply with the alternative writ by setting aside its previous decision. (Id. at 149.) The court reasoned that the Commission was allowed to comply with a judicial writ directing it to reconsider its actions. (Id. at 149-150.)

Here, the Court’s writ only directed the City to set aside the approval of the TOC entitlement; it provided no explicit authorization for the CPC to rehear or reapprove the project. In addition, the Municipal Code does not provide any mechanism for the CPC to rehear an appeal once it has been finally decided, nor does it allow the CPC to reapprove a Planning Case after setting aside its prior decision without explicit authorization. Respondents argue that the Municipal Code does not require a new application for a rehearing or the introduction of new evidence, but they fail to point to any express statutory authority that would allow the CPC to “change [its] determination made on the facts presented at a full hearing [after] its decision ha[d] become final.” (Save Oxnard Shores, supra, 179 Cal.App.3d at 149.)

In National Automobile, an insurance company filed a petition for a writ of mandate seeking to vacate a suspension order issued by the Insurance Commissioner on the grounds that the proceedings were conducted without jurisdiction. (National Auto., supra, 98 Cal.App.2d at 589.) The trial court held in favor of the petitioner; the appellate court affirmed. (Id. at 591.) The Court of Appeal concluded that the hearing was conducted without jurisdiction, and its findings and suspension order were null and void. (Id. at 593.) The court remanded the case back to the Insurance Commissioner for further proceedings, if any, in compliance with the legal requirements as clarified by the court. (Id.) The modification ensured that the matter was not entirely terminated but left open the possibility of further action consistent with proper legal procedures. (Id.)

Here, the issue is not the Insurance Commissioner’s failure to adhere to new procedural laws that applied to an ongoing hearing, resulting in a loss of jurisdiction, it is whether the CPC acted within its jurisdiction by rehearing and reapproving a project after the Court ordered the original approval set aside. The question is whether the CPC’s decision to rehear and reapprove the project was within its jurisdiction, absent explicit authorization from the Court to take such actions. The Court finds that the CPC lacked jurisdiction because the prior decision was final, the Court neither remanded the case nor explicitly permitted a rehearing, and there is no specific code or regulation that authorizes the CPC to rehear the matter after the decision had become final.

In Fascination, Inc. the trial court granted the plaintiff’s writ of mandate to compel city officials to issue a license for an amusement business. (Fascination, Inc., supra, 39 Cal.2d at 263.) The Court of Appeal reversed and remanded for further proceedings to determine whether a proper hearing was afforded to the plaintiff, and whether the city officials had a sound basis for their decision. (Id. at 267.) The court emphasized that in cases involving administrative decisions, the appropriate course of action is often to remand the matter to the agency for reconsideration rather than for the court to substitute its judgment on the merits of the case. (Id. at 268-269.) Again, unlike in Fascination, Inc., the Court here did not give remand instructions or direct the CPC to rehear the appeal.

Since there was a final determination and the Court did not remand the case, any further consideration of the requested Tier 3 Incentives required a new application to the Director of Planning. The Court finds that the CPC lacked jurisdiction to rehear and reapprove the case. The Court grants Petitioners’ first cause of action for action.

B. There Was Not Substantial Evidence to Support the CPC’s approval of Tier 3 Incentives

Petitioners argue that the CPC incorrectly determined that the TOC Guidelines do not require a 15-minute frequency of service for Rapid Bus lines. They claim this interpretation was rejected by the Court in the prior proceeding, which held that eligibility for the TOC program requires proximity to a Major Transit Stop with a service interval of 15 minutes or less during peak periods. The Court ruled as follows:

Real Party in Interest argues the “Tier 3” category does not contain a 15-minute service requirement. But an overarching eligibility requirement for the TOC Affordable Housing Incentive Program is proximity to a “Major Transit Stop,” which is defined as the intersection of two or more bus lines “with a service interval of 15 minutes or less during the morning and afternoon peak commute periods.” (AR 6947.) While the definition of “Tier 3” does not itself mention the 15-minute service interval requirement, this requirement is located under the heading “Type of Major Transit Stop.” It follows that the “Two Rapid Buses” which intersect must qualify for inclusion within a “Major Transit Stop,” and must satisfy the 15-minute service interval requirement. (Ibid.)

(Id.) The Court previously found that the Rapid Buses which intersect at Fairfax Ave and Pico Blvd. are required to satisfy the 15-minute service interval requirement. Respondents and Real Party are collaterally estopped from re-litigating this issue.

The CPC incorrectly interpreted and applied the TOC Guidelines in approving the Tier 3 incentives. The staff report prepared for the September 28, 2023 CPC hearing states:

The Court did not cite any specific evidence that Rapid Buses require 15 min. average peak headways but appeared to simply infer it based on a subtitle in Chart 1 that says Distance to Major Transit Stop. So, to summarize, the Department always intended for there to be a two-step process: 1) whether the site is located within 1 2 mile of a Major Transit Stop, and 2) which Tier the site is located in depending on the distance from different types of transit including Rapid buses.

This contradicts the Court’s prior ruling. The Court’s finding was based on the eligibility requirements in the TOC Guidelines. By disregarding this requirement and attempting to redefine the criteria for Major Transit Stops and Tier 3 incentives, the CPC acted in a manner inconsistent with the established TOC Guidelines and the Court’s prior decision.

Petitioners also contend that the CPC improperly considered evidence of transit service that postdates the initial approval of the Planning Case. They say this is not permitted by the TOC Guidelines because eligibility for incentives must be determined based on the transit service available at the time of tier verification and application acceptance. TOC Guidelines, Section III.2 provides: “Establishment of the appropriate Tier shall take place at the time an application is accepted and the Tier is verified by the City.”

The opposition does not address whether the CPC’s consideration of the NextGen Memorandum was improper.

The Tier 3 incentives were verified on February 27, 2020, when the City approved the Transit Oriented Communities Referral Form. The application for the Planning Case was accepted on March 25, 2020. The Director approved the Planning Case and granted the Tier 3 Incentives on December 30, 2020. The CPC, however, based its decision on a March 25, 2021 NextGen Memorandum, which was issued after the relevant dates in 2020 when the application’s tier was verified and the Planning Case was approved.

The Court finds that this is improper, because the NextGen Memorandum did not consider transit service at the time of tier verification or the acceptance of the application. The NextGen Memorandum was issued more than a year after the City had accepted the Planning Case application and verified the tier in the Referral Form, and nearly three months after the Director had approved the Planning Case.

There was no substantial evidence to support the CPC’s decision to reapprove the TOC Entitlement. Real Party relies on the staff report, which references Exhibits D and E, to support the argument that the Project qualifies for Tier 3 Incentives because the intersection of Pico Blvd. and Fairfax Ave. is considered a Major Transit Stop under the TOC Guidelines. Exhibit D refers to the verification by the Department of City Planning’s Development Services Center for Affordable Housing, which confirmed on February 27, 2020, that the site qualified for Tier 3 TOC incentives. This verification was done within the 180-day period before the application’s expiration on March 25, 2020. The exhibit serves to establish that the TOC Tier qualification was valid and verified within the required timeframe. Exhibit E includes the transit schedule data and supporting documents used to demonstrate that the bus routes at the intersection of Pico Blvd. and Fairfax Ave. met the service interval requirements necessary to qualify as a Major Transit Stop. It includes the relevant transit schedules for Big Blue Bus Route 7 and Metro Line 217, showing that their average service intervals were within the 15-minute limit during peak hours. But Exhibit E contains the March 25, 2021, memorandum titled “Metro NextGen; Rapid Bus Definitions,” which explains how the Metro Bus 217 was recognized as a replacement for the Metro 780 Rapid Line, maintaining its status for purposes of TOC incentives. Real Party includes only the portion of the staff report that discusses these exhibits and does not address any further evidence that the CPC relied on in making its determination. As noted, it was improper for the CPC to rely on the NextGen Memorandum, and there appears to be no further evidence to support the CPC’s determination.

The Court grants Petitioners’ second cause of action for violation of local zoning, specifically for violating the TOC guidelines.

Petitioners argue that the City violated Petitioner Grano’s due process rights. (Code Civ. Proc., § 1094.5, subd. (b); Cal. Const., art. I, § 7.) They assert that due process requires notice reasonably calculated to inform interested parties of the pending action and give them an opportunity to present objections. Petitioners rely on Horn v. County of Ventura (1979) 24 Cal.3d 605, to argue that the City violated Petitioner Grano’s due process rights by failing to provide reasonable notice of the September 28, 2023, CPC hearing on the Project. Petitioners state that Grano, who owns and occupies a residence 75 feet away from the project site, did not receive mailed notice of the hearing and was unaware of it, denying her the opportunity to participate. The Grano residence is accessed from Hi Point Street and would be impacted by construction and operational traffic, along with spillover street parking. The Grano residence includes a roof deck and expansive west-facing windows which contribute substantially to the desirability of the property. Petitioners state that the Project Site was not posted with notice, further limiting Grano’s ability to be informed.

Petitioners also argue that the TOC Program’s notice and appeal procedures are facially invalid because they systematically violate the due process rights of individuals with substantial property interests. They claim these procedures fail to provide adequate notice and the right to appeal. The program’s current procedures only notify and allow appeals from owners or tenants of properties directly abutting, across the street, or sharing a common corner with the subject property. Petitioners argue that this is unreasonably narrow, and the exclusion of other affected property owners, like Petitioner Grano and similarly situated individuals, creates a “total and fatal conflict” with constitutional due process requirements, as set forth in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.

In opposition, Real Party argues that Petitioner Grano received the process due to a non-abutting property owner under the LAMC. The procedures used by the CPC to rehear the TOC appeal were the same as those used for the original appeal, and Grano did not receive notice because she was neither an abutting property owner nor on the interested parties list. The LAMC in effect in 2023 did not require posting or notice to non-abutting owners for an appeal hearing. Real Party contends that Petitioners are not entitled to their preferred procedures but rather to the procedures prescribed by the City’s codes, asserting that the amount of process due is “flexible,” and depends on the nature of the competing interests, including administrative burden. (Horn, supra, 24 Cal.3d at 617-618.) Real Party asserts that Horn found a lack of direct mail notice to an adjacent property owner inadequate under its specific facts and does not support Petitioners’ broader claim that notice procedures are inherently inadequate without site posting or direct notice to all owners in the vicinity.

As to the notice provisions of LAMC §12.22.A.25(g), Real Party asserts that Petitioners have not met the high burden of proving these provisions are in “total and fatal conflict” with due process principles. It contends that Petitioners fail to demonstrate that a TOC approval requires the same level of notice as is necessary for adjacent owners in cases involving subdivisions or conditional use permits.

In Horn, the California Supreme Court held that the approval of a tentative subdivision map by a county is an “adjudicatory” function, which requires both prior notice and an opportunity to be heard for those whose property interests may be significantly affected. (Horn, supra, 24 Cal.3d at 610.) There, the plaintiff was a purchaser of a lot adjacent to the proposed subdivision. (Id.) The Supreme Court found that the county’s existing procedures for public notice of environmental decisions were constitutionally inadequate to inform concerned landowners of governmental actions affecting their property interests. (Id. at 610-611.) The notice procedures required the posting of environmental documents, such as the “negative declaration,” in three different county offices. Additionally, interested citizens could request to receive notices by mail regarding all environmental matters pending before county agencies. (Id. at 617.) However, these procedures did not mandate formal public meetings or hearings unless the environmental significance of a particular project warranted it. (Id. at 617-618.) The Court found these procedures inadequate because they placed the burden on concerned individuals to actively seek out information about potential projects that might affect their property. (Id.) The Court noted that relying solely on the posting of documents in public offices and mailing notices to those who specifically requested them was insufficient to meet due process standards when fundamental property interests were at stake. (Id.) The Court rejected the argument that the plaintiff lacked standing to assert these issues because he purchased the subject property after the planning department’s initial approval of the map. (Id. at 615-616.) It reasoned that since the approval process was not yet final when the plaintiff acquired the property, and no prior notice or hearing had been given to any affected landowner, the plaintiff's rights were still at issue. (Id. at 617-618.)

The Court finds that the notice and appeal procedures of the TOC Program, set forth in LAMC §12.22.A.25(g), satisfy constitutional due process requirements. Horn is distinguishable from the case at hand. Horn required a higher level of due process, including notice and hearing, because the map directly impacted the property rights of adjacent landowners. Here, the TOC Program involves the approval of incentives based on fixed standards and objective criteria, making it more akin to ministerial actions. These do not have the same level of due process since they involve less discretionary decision-making and have a more limited impact on individual property rights. The scope of impact in Horn also was broader because the plaintiff there, as an adjacent property owner, faced significant changes to the use and enjoyment of their property. The TOC Program’s approval process is designed to affect only the properties immediately adjacent to the project site, providing notice specifically to abutting property owners who are most likely to be directly impacted.

Petitioner Grano did not receive notice because she was not an abutting property owner, and the LAMC does not require notice to non-abutting owners for TOC decisions. The Court finds that the broader notice requirements in Horn are not necessary for the more limited impacts of TOC approvals.

Petitioners fail to respond to Real Party’s statute of limitations argument. It appears that any facial challenge to the procedural provisions of LAMC §12.22.A.25(g) or the TOC Program authority at LAMC §12.22.A.31(e) should have been brought within 90 days or three years of being adopted, pursuant to Government Code §65009 and Civil Procedure Code §338(a).

Petitioners argue that the City violated CEQA and the LAMC by refusing to accept Petitioner Grano’s CEQA appeal of the Exemption Determination to the City Council. Under Public Resources Code § 21151, subdivision (c), when a non-elected decision-making body determines that a project is not subject to CEQA, that determination may be appealed to the agency’s elected decision-making body. Former LAMC Section 11.5.13 provides that such determinations can be appealed to the City Council, provided that all administrative appeals have been exhausted, and the appeal is filed within 15 days of the project approval becoming final. Here, the CPC determined on October 17, 2023, that the Project was exempt under the Class 32 Categorical Exemption. Petitioner Grano filed a timely CEQA appeal, which the City initially accepted but later rejected on the grounds that there was no authority for a second appeal of the exemption determination for the Project.

In opposition, Real Party contends that LAMC §11.5.13, which outlines CEQA appeal procedures, is consistent with Public Resources Code §§ 21151(c) and 21155.2(b)(6), which implement CEQA requirements without expanding appeal rights beyond what CEQA mandates. Real Party argues that the intent of Public Resources Code § 21151(c) is to ensure that an elected decision-making body has “ultimate responsibility” for a project’s CEQA analysis. CEQA achieves this by allowing appeals of CEQA determinations made by a “nonelected decision-making body” to the agency’s elected decision-making body. (Vendanta Society of S. California v. California Quartett (2000) 84 Cal.App.4th 517, 526.) Since the elected decision-making body already had reviewed the project’s CEQA analysis, and the project had not changed since that review, Real Party says it would be redundant for the elected body to reconsider the same CEQA appeal. Additionally, Real Party argues that any facial challenge to LAMC §11.5.13 for violating CEQA or Public Resources Code §21151 is barred by the statute of limitations of 90 days under Government Code §65009, and three years under Code of Civil Procedure §338(a), since the ordinance was adopted in 2019.

The Court finds that the City improperly refused Petitioner Grano’s CEQA appeal of the Exemption Determination to the City Council. Petitioner Grano filed a timely CEQA appeal following the CPC’s determination that the Project was exempt under the Class 32 Categorical Exemption. The Court finds that the City should have accepted the appeal pursuant to Public Resources Code §21151(c) and Former LAMC §11.5.13.

Respondent argues that Grano is barred from relitigating the legality of the Project’s CEQA analysis. The Court finds that Grano is not estopped from raising arguments based on new information relating to compliance with zoning regulations. The NextGen memo and timetables from 2023 were not part of the City’s original justification for its Tier 3 determination, constituting new information that may be challenged in a CEQA appeal. Petitioners show that Grano’s appeal provided new arguments concerning noncompliance with the “Q” Condition open space standards. The appeal also raises a new issue regarding the City’s lack of authority to approve the Project under applicable zoning ordinances, which was not adjudicated in the prior action.

The City improperly refused to process the appeal. The Court finds for Petitioner on Grano’s first cause of action on this separate ground.

Petitioners argue that the Project does not qualify for the Class 32 Categorical Exemption under CEQA because it fails to meet all applicable zoning regulations, and the City did not provide substantial evidence to support its determination. Under CEQA, the lead agency has the burden of proving a project falls within a categorical exemption, and this determination must be supported by substantial evidence. (Citizens for Envtl. Responsibility v. State ex rel. 14th Dist. Agric. Ass’n (2015) 242 Cal.App.4th 555, 568.) First, Petitioners contend that the Project is not eligible for Tier 3 Incentives because the City improperly relied on evidence that was created after the tier verification and even after project approval. Second, Petitioners argue that the City failed to provide substantial evidence showing that the Project complies with the “Q” Conditions for open space. The "Q" Conditions require a minimum of 100 square feet of usable open space per dwelling unit, with specific criteria for private and common open spaces, including dimensions and landscaping requirements. Petitioners argue that the Project provides only 1,162.5 square feet of qualifying open space, well below the required 1,500 square feet, and fails to meet the minimum 50-percent landscaping requirement for common areas.

In opposition, Respondents argue that the Class 32 CEQA analysis for the Project already has been upheld by the Court in the previous petition filed by Hi Point, with the Court’s ruling on March 9, 2023, affirming the legality of the Project’s CEQA analysis. Since Hi Point did not appeal this decision, Respondents assert that it is barred from challenging the same issue again. (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511-512). Respondents maintain that there has been no change in the Project’s intensity or density between the initial ruling and the subsequent reapproval of the TOC incentives by the CPC. Additionally, Respondents assert that the current administrative record contains substantial evidence supporting the Project’s Tier 3 TOC incentives, as detailed in the Real Party’s Opposition Brief, which the City has joined. They also argue that Petitioners’ arguments regarding the "Q" conditions were already considered and rejected in the Court's March 9, 2023 ruling.

The Class 32 Categorical Exemption analysis under Guidelines section 15332, subdivision (a) was addressed in the Court’s March 9, 2023 ruling. The Court upheld the Class 32 Categorical Exemption under CEQA; Petitioner Hi Point did not appeal that ruling. Hi Point is barred by res judicata from relitigating the legality of the Project’s CEQA analysis. Petitioners do not argue that there has been a change in the Project’s intensity or density between the Court’s ruling in March 2023 and the subsequent reapproval of the TOC incentives by the CPC. Given this lack of evidence, the Court finds there is no change. Petitioner Hi Point may not relitigate this issue.[1]

[1] Although Grano was not a party to Hi Point’s original petition, Grano and Hi Point filed joint briefs on the pending petitions and are represented by the same counsel. In any event the Court, as noted, finds no change in facts that would justify the Court’s reaching a different result. The Court incorporates in this ruling its March 9, 2023 ruling on this issue.

*Superior Court of California* *County of Los Angeles*
Hi Point Neighbors Association,	Petitioner,	Case Nos.:	21STCP02223; 23STCP04569
vs.		Tentative Ruling
City of Los Angeles,	Respondent.
Andrea Grano, vs. City of Los Angeles,	Petitioner, Respondent.
Hi Point M, LLC,	Real Party in Interest.